Oh what a tangled web we weave…
This past week, a video was released of an encounter between former U.S. Attorney Jim Letten and provocateur James O’Keefe from this past July. The encounter took place on the sidewalk in front of Tulane Law School (my alma mater) where Letten is now an assistant dean.
“You went to my home, you terrorized my wife, you’re violating federal law, you’re violating state law, you’re trespassing, you’re a nasty cowardly little spud,” Letten shouted. He also called O’Keefe a “hobbit” for some reason.
Some background is necessary here. James O’Keefe is a species of yellow journalist. His basic shtick is to pretend to be somebody else in order to catch groups and individuals making compromising statements. He then heavily edits the footage, sometimes very misleadingly, for heightened effect.
O’Keefe made his bones in 2009 by taking down the progressive group ACORN in a video in which he and a cohort, Hannah Giles, pretended to be a pimp/prostitute pair seeking assistance on avoiding detection by civil authorities in nefarious endeavors. The selectively-edited video revealed misconduct by low-level ACORN employees and provided the final straw that led the federal government to cut funding from the group.
After that, O’Keefe attempted to maintain his dragon-slayer reputation through various projects. In 2010, he decided to target Senator Mary Landrieu following reports that she avoiding calls critical of her vote in favor of Obamacare. To get evidence of this, O’Keefe decided to resurrect his trick of pretending to be something he wasn’t, namely a telephone company repairman.
To make a long story short, O’Keefe’s ruse failed. He was arrested and brought up on felony charges, but later pled out to a misdemeanor for gaining access to a federal office under false pretenses and received a fine and probation. O’Keefe is still sore about the whole mess, arguing that it was a political prosecution and that Letten’s office mishandled evidence.
This idea was lent more credibility by Letten’s subsequent resignation following revelations that members of his staff, including the prosecutor assigned to O’Keefe’s case, had inappropriately commented on a online message board regarding ongoing cases. Over at The Lens, Mark Mosely has argued persuasively that O’Keefe had a legitimate gripe.
That brings us back to this past July, when O’Keefe decided to revisit New Orleans to catch Letten on camera. He first went to Letten’s home, where Letten’s wife told O’Keefe that he wasn’t there. O’Keefe apparently called and left a message for Letten at his office (supposedly claiming to be a prospective law student) and then went to Tulane where he was confronted on the sidewalk on Freret Street by uniformed Tulane Police officers and Mr. Letten himself.
This is when Letten lost him temper and flew into histrionics, accusing O’Keefe of trespassing, terrorizing his wife, etc. O’Keefe tried to give Letten a copy of his book, which Letten took only to throw it back at O’Keefe. This went on until Letten started to leave and O’Keefe’s crew did the same, but then were detained by the Tulane Police Officers on suspicion of “trespassing.”
This is where the episode actually became interesting to me. Letten losing his temper isn’t much of a story. Letten has since apologized, and so that story becomes about as dull as the countless times people lose their temper and live to regret it each and every day.
However, in the process of losing his temper, Letten accused O’Keefe of trespassing, and the Tulane Police backed him. However, the sidewalk along Freret Street is, like all other sidewalks adjoining public streets, public property. The officers openly admitted that O’Keefe and his crew were being detained for an active trespass, and then escorted them away from Tulane’s campus. O’Keefe was even issued a “restricted presence” notice, informing him that he was barred from Tulane’s property.
Here’s the thing – it doesn’t appear that O’Keefe ever actually went onto Tulane’s campus, and it’s clear from O’Keefe’s video that the Tulane Police believed that the sidewalk was Tulane’s property.
In his video, O’Keefe argues that his detention was illegal, but gives the wrong basis. He argued that he has a constitutional right to be present on the open grounds of a university campus, citing an early 80’s U.S. Supreme Court decision. However, that decision did not actually go to the merits. To my knowledge, a private university in Louisiana still has broad power to exclude specific persons from its grounds.
Others went overboard in the other direction. FOX 8 legal analyst Joseph Raspanti was quoted saying that “these police officers can detain someone until they identify who they are, they have the absolute right to do that.” This is definitely not the case – officers can normally only detain somebody so long as they possess reasonable suspicion that they are involved in criminal activity. We’d be a textbook police state if cops could detain anybody they wanted and, as in the old Soviet Bloc, “ask for their papers.” In any event, O’Keefe’s identity was not in dispute.
No, O’Keefe’s detention wasn’t illegal because Tulane can’t control access to its own grounds, nor was it valid because the police have virtually unfettered authority to detain people. It’s illegal because the sidewalk does not belong to Tulane. Tulane no more owns that sidewalk than it owns Freret Street. There was no trespass.
Put another way, as the Louisiana Supreme Court held nearly 130 years ago, “abutting proprietors are not recognized as having a fee in the sidewalks or streets in front of their estates, which are considered as public property[.]” Irwin v. Great Southern Tel. Co., 37 La. Ann. 63, 67 (La. 1885).
Private property owners who assert any ownership interest in public rights-of-way cause no end of problems in this city. It has impacted me personally on a number of occasions, and it needs to stop. No, you do not own the sidewalk. No, you do not own the parking lane in front of your house. No, you do not own the street. No, you do not own the neutral ground.
Certainly, one can ask a person to move along by appealing to their sense to civility, but when you expressly claim private ownership of public lands and exploit the ignorance of law enforcement to get your way, that’s when it becomes a serious problem. That’s when a line is crossed and any hope of polite accommodation is lost.
The Tulane Police should have known better. Sure, Letten is a former U.S. Attorney and certainly has a better knowledge of the law, but he was clearly throwing a tantrum and was not a great source of legal analysis at the time.
Moreover, even if O’Keefe had attempted to enter Tulane Law School, the building is (like most university buildings) normally open to the public. At most, O’Keefe should have been turned away and only detained if he refused to leave or barged his way in. It appears that the only reason O’Keefe was detained is because the Tulane Police showed bias towards Letten and ignored the law.
None of this, of course, means I sympathize greatly with O’Keefe. He’s obviously reveling in this. Letten lost his temper, and the Tulane Police allowed themselves to become caricatures of law enforcement – brazenly detaining a political provocateur on a public sidewalk for trespassing.
Among other bizarre insults, Letten described O’Keefe as a “hobbit,” a member of a race of very short beings from the Lord of the Rings universe, but he would have been better off using the word “troll.” In Internet slang, trolls are people who intentionally provoke others to start confrontations, often in hopes that they’ll lose their cool and embarrass themselves. That’s certainly what O’Keefe was doing, and everyone fell for it. The trap worked.
Nevertheless, even an unsympathetic muckraker can have the troubling virtue of being right. If university police treat O’Keefe this way, who is to say a local reporter won’t be next? Will they arrest somebody if they refuse to leave the sidewalk? Do they believe that “restricted presence” letters can actually apply to public rights of way?
Those are the questions this episode left me asking, and I’m not liking the answers. Tulane needs to address this issue promptly. Sometimes a simple apology just isn’t enough.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.